El deber objetivo del cuidado en los homicidios culposos por mala práctica profesional médica análisis del caso Dr. Juan Pablo Arias

Abstract

The objective of this legal case study is to determine whether the circumstances established in article 146 of the Código Orgánico Integral Penal exist so that criminal responsibility for the crime of homicide due to professional negligence can be attributed to the defendant. In this sense, an analysis of the constant statement within file No. 01283-2019-14403G is carried out in order to determine whether the actions carried out by the processed subject violate the objective duty of care. This investigation begins by analyzing each of the elements of the crime, then the objective duty of care is defined, and it is deduced what the circumstances are for its non-compliance. In addition, an analysis of the criminal type of culpable homicide due to professional malpractice is carried out, where it is deduced that the constitutive elements to determine the existence of criminal responsibility on the part of the defendant are guilt, failure to observe the objective duty of care and the result of death. As for fault, it consists of an infraction carried out without intention and without due diligence that in turn causes a harmful result in the taxpayer. Medical fault exists when the health professional has not observed the objective duty of care, in this sense, the health professional must act recklessly, negligently with inexperience and there must be a violation of laws and regulations. Regarding the harmful result, there must be a causal link between the actions carried out by the health professional with the death of the patient.